Phillips Lytle Attorneys Lisa McDougall and William P. Keefer Comment on New York State End-of-Life Plans

By Michael Petro, originally published in Buffalo Law Journal on 12/14/15.

NYS offers options for carrying out end-of-life plans

While taking part in a role-playing exercise at a program on planning for end-of-life and palliative care, Phillips Lytle attorney Lisa McDougall helped paint a picture that is all too common in the process of deciding what to do for a patient whose wishes may be unclear.

In the hypothetical scenario, she played a health care agent who did not realize that keeping a sibling alive in her current condition was actually to the patient’s detriment.

When it becomes more about the health care agent’s needs than what is best for the patient, she said, it goes against the concept of New York State Public Health Law and what is required of someone who agrees to take on this role.

“You’re supposed to step in the shoes of the person for whom you’re the agent,” said McDougall, who focuses on health care matters at the Buffalo law firm. “It’s the duty of the agent to act on (the patient’s) wishes, whether or not those wishes would be the choice of the agent.”

She said it’s pretty typical in these situations that a health care agent is not appointed, or if there is one, no communication has occurred regarding the wishes of the person who is now incapacitated.

A survey by Univera Healthcare found that the majority of Upstate New Yorkers, nine out of 10, realized the importance of having someone close to them make decisions on their behalf if a medical situation called for it. Yet only 42 percent had designated a health care proxy to ensure that their wishes are carried out.

Said McDougall: “As a physician, you have to do everything to save the person unless you’re able to say, for a variety of reasons, ‘That’s not what they would have wanted.’ ”

Also discussed at the recent program was the role of a health care proxy; creation of the legally recognized order for seriously ill New Yorkers called Medical Orders For Life-Sustaining Treatment, or MOLST; and the Family Care Decisions Act, which was signed into law in 2010.